City of Mobile v. Phillips

• Citation: 146 Ala. 158,40 So. 826
• Parties: CITY OF MOBILE v. PHILLIPS.
• Decision Date: 11 April 1906
• Court: Alabama Supreme Court

40 So. 826

146 Ala. 158

CITY OF MOBILE v. PHILLIPS.

Supreme Court of Alabama

April 11, 1906

Appeal from City Court of Mobile; O. J. Semmes, Judge.

"To be officially reported."

Action by the city of Mobile against Ferdinand Phillips. From a judgment in favor of defendant, plaintiff appeals. Reversed and remanded.

This cause was tried upon the following agreed statement of facts "That the pamphlet attached hereto as Exhibit A is a true copy of the ordinance adopted by the mayor and general counsel of the city of Mobile, and that said ordinance, and particularly subdivision or subsection 28 thereof, is the ordinance, or part of ordinance, for an alleged violation of which this prosecution was instituted. That said exhibit hereto is to be considered as having been proven by competent evidence. That the defendant herein in an individual who resides in Mobile, Ala., and that he is engaged in the business of being a retain beer dealer, for which, under the exhibit hereto, he has paid the amount of his license as required by said ordinance for and during the fiscal year beginning March 15, 1904, and ending March 14, 1905. That said payment having been made, a license therefor was duly issued by the proper authorities of the city of Mobile authorizing the defendant to carry on the business of retail beer dealer during said time. That the defendant, in addition to his other liquor business carried on under the authority of said paid license under said ordinance, has likewise, but at the same place and with the same employés, before the institution of this prosecution in the recorder's court and since March 15, 1904, been engaged in the business of buying and selling beer in kegs, but only under the following circumstances: That the defendant would, by letter or telegram sent from Mobile, Ala., order from a brewery or breweries owned and conducted by residents and citizens of states other than Alabama certain large quantities of lager beer, which pursuant to said orders would be shipped by continuous interstate transportation by said nonresidents to the defendant at Mobile in kegs, which kegs were, without other packing, loaded into railroad freight box cars and transported by the railroad company from said breweries in other states to the defendant at Mobile, Ala. That said purchases by the defendant were outright, and that the defendant by and to said purchases became the owner of said lager beer, to do with as he pleased. That he paid for it usually after its arrival, but never until a bill of lading for each such shipment so paid for had been received by the defendant at Mobile. That the packages in which said beer came were invariably kegs of the usual, ordinary, and customary commercial sizes in which the same is packed for sale and shipment, and that in such usual, commercial original packages the same was taken from the car upon arrival at Mobile, and stored in the storehouse or warehouse of the defendant in the city of Mobile until sold by the defendant. That the defendant made sales of said kegs, in quantities of one or more, to his various customers in and about the city of Mobile and the vicinity thereof, and that such sales were made in contemplation by the defendant of deliveries by the defendant in said kegs as original packages, and that the deliveries were thereafter made by delivery wagons owned and operated by the defendant in the city of Mobile to such customers in such original packages. That from the time of the packing and shipping of said beer at the breweries in other states than Alabama, until after sale and delivery thereof by the defendant to his various customers in the city of Mobile and the vicinity thereof none of said kegs, as original packages, ever became broken or open; but the deliveries by the defendant to his respective customers of said beer was always in the same original, usual, commercial packages in which the same were packed and shipment from the breweries in said foreign...